Nowels v. Ketchersid Music, Inc.

• Decision Date: 31 December 1958
• Docket Number: No. 8602,8602
• Citation: 80 Idaho 486,333 P.2d 869
• Parties: A. L. NOWELS, doing business under the name and style of Western States Distributors, Plaintiff-Respondent, v. KETCHERSID MUSIC, Inc., a corporation, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 869

333 P.2d 869

80 Idaho 486

A. L. NOWELS, doing business under the name and style of Western States Distributors, Plaintiff-Respondent, v. KETCHERSID MUSIC, Inc., a corporation, Defendant-Appellant.

No. 8602.

Supreme Court of Idaho.

Dec. 31, 1958.

E. G. Elliott, Frank Langley, Boise, for appellant.

John T. Hawley, Boise, for respondent.

KEETON, Chief Justice.

This action in claim and delivery, after due demand, was commenced July 2, 1956, to recover possession of certain phonographic equipment sold defendant by plaintiff under six several conditional sales contracts, or, in lieu of possession, to recover the balance of the contract price. These contracts were sold and assigned to the Peoples Finance & Thrift Co. of Salt Lake City. Thereafter on May 11, 1956, a supplemental contract between the parties was entered into covering the articles sold by the six original contracts. By the terms of the supplemental contract, the monies owed on all six title retaining contracts, in the sum of $2,716, were made payable at the rate of $194 per month, commencing on June 15, 1956. This contract was likewise assigned to the Peoples Finance & Thrift Co.

All the contract assignments, among other clauses, contain the following:

'Dealer's Assignment and Guaranty

'To Peoples Finance And Thrift Company Of Salt Lake City, Utah:

'For value received, undersigned does hereby sell, assign and transfer to Peoples Finance and Thrift Company of Salt Lake City, Utah, his, its or their right, title and interest in and to the within contract, herewith submitted for purchase by it, and the property covered thereby and authorizes said Peoples Finance and Thrift Company to do every act and thing necessary to collect and discharge the same.

'The undersigned certifies that said contract arose from the sale of the within described property, warranting that title to said property was at time of sale and is now vested in the undersigned free of all liens and encumbrances; that said property is as represented to the purchaser of said property by the undersigned and that statements made by the purchaser of said property on the statement form attached hereto are true to the best of the knowledge and belief of the undersigned.

'In consideration of your purchase of the within contract, undersigned guarantees payment of the full amount remaining unpaid thereon, and covenants if default be made in payment of any installment herein to pay the full amount then unpaid to Peoples Finance and Thrift Company upon demand. Liability of the undersigned shall not be affected by any settlement, extensions, variation of terms of the within contract effected with, or by the discharge or release of the obligation of the purchaser or any other person interested, by operation of law or otherwise. Undersigned waives notice of acceptance of this guaranty and notices of non-payment and non-performance; agrees to pay all costs and expenses, including attorney fees, which may be incurred by assignee in any action brought on or in connection with any of the terms of said contract or this guaranty.

'/s/ Western States Distributors Seller

By A. L. Nowels--owner'

Default was made in installment payments.

The supplemental contract contained an acceleration clause which provided that in case of default, the balance owed should, at the seller's (plaintiff's) option, become immediately due and payable.

The Peoples Finance & Thrift Co., assignee, in accordance with the acceleration clause and the contract of guaranty, demanded immediate payment from plaintiff of the full amount then unpaid under the contracts, which plaintiff paid the assignee on and between July 31 and September 25, 1956 (after the commencement of the action). Peoples Finance & Thrift Co. thereupon returned the contracts, both original and supplemental, to plaintiff.

After default in payment plaintiff made demand on defendant for payment or the return of the property so sold, which demand was refused.

By his second amended complaint, as amended, plaintiff claims a right of possession of the articles sold, and in case possession cannot be had, seeks recovery of the unpaid balance of the purchase price.

The trial court overruled defendant's demurrer to the second amended complaint, as amended. Defendant then answered, claiming that the amount stated in the complaint was not the correct balance unpaid; that it was not in default, and further that plaintiff was doing business under an assumed and fictitious name, without having first filed in the office of the county recorder of the county in which such business was carried on, a certificate required by Secs. 53-501 and 53-502, I.C.

On a trial of the issues, the court found that defendant was in default and plaintiff entitled to possession of the articles sold or to recover from defendant the full amount of the value, found by the court to be a balance of $2,504; that after suit was instituted, some of the property had been recovered and sold for the sum of $1,425, and the balance unpaid amounted to $1,079, plus interest. Judgment was entered against defendant for the recovery of the property, or if possession could not be had, for the balance so found to be due. Defendant appealed.

In assignments of error defendant contends that the demurrer to the second amended complaint should have been sustained that the assumed business name certificate (Ex. 1) should not have been admitted in evidence; that conclusion of law No. I, which reads as follows:

'That on June 16, 1956, when People's Finance and Thrift Co. made demand on plaintiff for payment in full of said defaulted contract balance pursuant to the terms of said assignment, the plaintiff at that time became entitled to maintain and bring this action against the defendant and said contract was, by operation of law, reassigned back to the plaintiff at said time, by reason of which the plaintiff became the real party in interest herein.'

is erroneous; that the judgment entered is contrary to the law and evidence.

In support of its assignments, defendant makes two basic contentions: first, noncompliance with Sec. 53-502, I.C., which requires that a person transacting business under an assumed or fictitious name, or designation, other than his true and real name, shall file in the office of the recorder of the county in which said business is to be conducted, a certificate which shall set forth the designation, name or style under which said business is to be conducted, and the true or real name or names of the party or parties conducting it, and Sec. 53-506, I.C., which reads:

'No person or persons carrying on, conducting, or transacting business as aforesaid, or having any interest therein, shall hereafter be entitled to maintain any suit in any of the courts of this state without alleging and proving that such...